Labor and Employment Law Weekly Update - March 12, 2012

The New Functional Affirmative Action Plan: Back and Better Than Before?
Written by: Krista J. Sterken

Federal contractors with at least 50 employees and federal contracts of at least $50,000 are required to develop and implement a written affirmative action program for each of their physical establishments. Functional affirmative action plans (FAAPs), in which an employer establishes an affirmative action program for a specific business department (marketing, for example) rather than physical location, are nothing new. The Office of Federal Contract Compliance Programs (OFCCP) has been approving FAAPs since 2002.

Notably, OFCCP approved only 130 FAAPs between 2002 and 2010. In 2010, OFCCP issued a moratorium on any new FAAPs while it evaluated changes to the FAAP program. When OFCCP announced the return of the FAAP in June 2011, Director Patricia A. Shiu proclaimed that, “The FAAP is back and is better than before”. It is back, but is it really better?

FAAPs can be advantageous when the contractor’s business is managed by business unit rather than physical location. In this case, a FAAP provides an alternative that may more closely mirror the contractor’s organization, resulting in greater efficiency and effectiveness. However, the new directive governing FAAPs instituted significant changes that must be weighed by contractors before electing this alternative:

Current Eligibility Requirements: To qualify for a FAAP, the functional unit must currently exist and operate autonomously, include at least 50 employees, have its own managing official, and have the ability to track and maintain its own personnel activity.

New Approval Process: Contractors must obtain written approval from OFCCP prior to establishing a FAAP agreement. Previously, FAAPs were automatically approved if the agency failed to act on the request within 120 days. The new approval process also involves a mandatory conference to discuss the request. The OFCCP considers Equal Employment Opportunity violations from the past three years in deciding whether to approve the FAAP.

More Frequent Renewal Requirement: Previously, FAAPs expired after five years, at which point the contractor was required to submit a renewal request. Under the new FAAP directive, policies now expire after three years. Contractors must submit a renewal request no later than 120 days prior to expiration. To be eligible for renewal, two of the contractor’s functional units must have passed compliance evaluations during the three-year term of the agreement.

Additional Reporting Obligations: Contractors must notify the OFCCP of any significant changes in their corporate structure within 30 days of the change. Failure to do so may result in termination of the FAAP. Contractors also must notify OFCCP annually of minor FAAP changes, such as new HR representatives and address changes. The failure to provide these annual updates may result in a compliance evaluation.

Although a FAAP may improve efficiency and efficacy, a contractor must weigh these advantages against a more burdensome approval and renewal process as well as the additional reporting obligations imposed by the new FAAP directive.

The Department of Homeland Security’s Immigration and Customs Enforcement (ICE) continues to use worksite enforcement (such as I-9 inspections) as a tool to curb illegal immigration. Recognizing the importance of maintaining a legal workforce, most employers focus on the issue early by asking job applicants about work authorization. Asking this question on the employment application, rather during an interview, ensures that the question is asked of each applicant in the same way. It also is important to ask the question using the proper language and focus. Otherwise, the question may lead to discrimination charges and investigations by the Department of Justice’s Office of Special Counsel (OSC) or EEOC.

The question must focus on the job applicant’s ability to work legally in the United States. The question should not ask about the applicant’s immigration status or citizenship. Therefore, an employer may ask:

Are you authorized to work lawfully in the United States for [insert company name]?
_____ Yes _____ No

An employer should not ask questions such as “Are you a U.S. citizen or do you have a visa that allows you to work?” For most purposes, if the person is authorized to work for the employer, it does not matter whether the source of the work authorization is American citizenship, permanent residence in the United States, or temporary employment authorization that is independent of the employer. The point is that the job applicant states he or she is authorized to work legally in the United States for the company where the applicant is seeking a position.

Employers also should not ask on the job application or during a job interview for “proof” of work authorization such as, “Are you authorized to work lawfully in the United States (proof required)?” Evidence of work authorization is not required until after there is an accepted job offer. Indeed, the evidence is presented at the start of employment when the employer and new hire complete the Form I-9, Employment Eligibility Verification. If the employer requests evidence before an accepted job offer, the OSC may assert that the employer is prescreening job applicants based upon citizenship or immigration status. The OSC also has commented that questions referencing “proof” discourage qualified individuals from applying. According to the OSC, job applicants may not understand what proof is required until they review the Form I-9 instructions and I-9 List of Acceptable Documents. Even when the question on the job application makes clear that proof is not required until employment begins, the OSC has objected. See OSC Technical Assistance Letter (Dec. 22, 2010) (stating that the question “Can you, after employment, submit proof of your legal right to work in the United States?” may discourage qualified applicants because they do not understand that “proof” means documents on the I-9 List of Acceptable Documents). If the employer wishes to state that evidence of work authorization will be required when employment starts, it is best to reference the I-9 Form and not the term the OSC finds confusing (“proof”). For example, the employer may state as follows on its job application:

Are you authorized to work lawfully in the United States for ___________ company?_____ Yes _____ No

Note: If hired, a Form I-9, Employment Eligibility Verification, must be completed at the start of employment.

It is a best practice to ask job applicants about their ability to work legally in the United States, but how an employer goes about asking is important.

Legal News is part of our ongoing commitment to providing legal insight to our clients and colleagues. If you have any questions about or would like to discuss these topics further, please contact your Foley attorney or the authors of this week’s issue.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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